March 12, 2001, 4:37 PM — The debate over benchmark restriction has become part of the spirited discussion around the Uniform Computer Information Transactions Act, a proposal to create uniform state laws that govern contracts for software and digital content.
UCITA was drafted and ratified in 1999 by the National Conference of Commissioners on Uniform State Laws, an organization of more than 350 practicing lawyers, judges and academics.
Microsoft Corp. is lobbying hard to have the proposal passed in Washington state. UCITA has passed in Maryland and Virginia.
UCITA is opposed by every major consumer group, 26 state attorneys general, senior staff at the U.S. Federal Trade Commission, and the associations governing newspapers, motion pictures and libraries. One important issue, critics note, is that UCITA would characterize software contracts as "licenses of use" rather than "sales of goods." That point, critics say, could usurp consumer protection laws and fair-use rights, such as allowing criticism of products through such efforts as benchmark testing.
Proponents say UCITA ensures that courts can overturn the restriction if it violates accepted public policy such as free speech, according to Ray Nimmer, principal author of UCITA and a law professor at the University of Houston. "UCITA puts in procedural protections that limit situations where contracts are enforceable," he says.